Opinion
CIVIL ACTION NO. 1:07-CV-0616.
June 19, 2007
ORDER
AND NOW, this 19th day of June, 2007, upon consideration of pro se plaintiff's affidavits (Docs. 8, 30), requesting that default be entered against defendant Pennsylvania Department of Education ("DOE"), and the DOE's response to the order of court dated May 17. 2007 (Doc. 10), which directed the DOE to show cause why default should not be entered against it, and it appearing that plaintiff did not properly serve the DOE with the summons and complaint, see FED. R. CIV. P. 4(j)(2); PA. R. CIV. P. 422(a), it is hereby ORDERED that plaintiff's requests (Docs. 8, 30) that default be entered against defendant Pennsylvania Department of Education are DENIED.
Plaintiff states that the DOE was served on April 5, 2007, but his proof thereof only indicates that the DOE was served at 333 Market Street in Harrisburg, Pennsylvania. (See Doc. 4, Ex. B; Doc. 8, Ex. B.) It does not demonstrate that the complaint and summons were served on the chief executive officer of the DOE,see FED. R. CIV. P. 4(j)(2), nor does it indicate that the complaint and summons were served on the person in charge, see PA. R. CIV. P. 422(a). Defendant Steven L. Turner states that he was given documents for the DOE without explanation, but that he is not authorized to accept service on behalf of the DOE. (See Doc. 29, attach.)
Defendant Pennsylvania Department of Education is not required to respond to the complaint until plaintiff properly effects service on it. See FED. R. CIV. P. 12(a)(1) (providing that "a defendant shall serve an answer (A) within 20 days after being served with the summons and complaint, or (B) if service of the summons has been timely waived . . . within 60 days").